Vindicating Their Ancient Rights and Liberties

Lord Acton, the great historian of freedom, understood that “liberty is the delicate fruit of a mature civilization.” The liberty of which he spoke embraced a broad scope of human freedom, including dimensions political, intellectual, economic, and, especially, religious. The civilization of which he spoke was the West, whose heritage of Greek philosophy, Roman law, and Christian faith indelibly marked it and inexorably pushed it toward the full panoply of liberties we enjoy today and to which the rest of the world looks. And the history he sought to express was the unfolding witness to the expansion, refinement, and richer application of the principles of liberty.

In celebration of the Acton Institute's tenth anniversary and in the spirit of Lord Acton, Religion & Liberty is publishing a series of essays tracing the history of, as Edmund Burke put it, “this fierce spirit of liberty.” We shall look at several watershed documents from the past thousand years (continuing this issue with the 1689 English Bill of Rights and Act of Toleration), each of which displays one facet of the nature of liberty. We do so to remember our origins and to know our aim. And we do so because, in the words of Winston Churchill, “We must never cease to proclaim in fearless tones the great principles of freedom.” – the Editor

Conservatives are committed to the political ideal of ordered liberty, constitutionally framed and guaranteed—in other words, to the rule of law in contrast to that of persons or, even, abstract ideals. Even in a constitutional monarchy, the regent's authority is limited by the law of the land. This principle developed at key historical moments and through accompanying documents that restrained and limited royal absolutism and, thus, enlarged liberty. One of those key moments was the English “Glorious” or “Bloodless” Revolution of 1688, which replaced Stuart King James II with his Dutch nephew and son-in-law Stadholder-King William III of the House of Orange, producing in its wake the 1689 Bill of Rights and Act of Toleration.

Conservatives thus oppose revolutions. Change must be orderly, coming through means that uphold law itself. The notion of a conservative revolution is, then, an oxymoron. No conservative can, with integrity, advocate a revolutionary strategy that challenges the foundation of civil authority itself, yet even such noted anti-revolutionary conservatives as Edmund Burke and Abraham Kuyper praised the “Revolution” of 1688. What is going on here?

One Hundred Years of Controversy

To understand the events of 1688-89, we need to go back to the first Stuart King, James I, who reigned from 1603-25. James - whose convictions about the divine right of kings, buttressed by the Anglican establishment, were summed up by his insistence on the principle of “no bishop, no king”was succeeded by his son, Charles I. Needing money for his wars, Charles taxed without parliamentary assent and imposed martial law that enabled him to billet soldiers and to imprison opponents without warrant and trial. In 1628 Charles was presented with Parliament's Petition of Right, a document that did not challenge his office or authority but called on him to stop encroaching on rights long established in English common law. Though Charles reluctantly accepted the petition, in effect promising not to do these things anymore, tension between the monarchy and Parliament remained. The outcome was a decade-long civil war (1639-49) that introduced into English history and language such colorful terms as Rump Parliament, Roundheads, Levellers, and Diggers.

Charles I was beheaded in January 1649, and the military protectorate of Puritan leader Oliver Cromwell took power, initiating a “rule of saints.” On Cromwell's death, the protectorate collapsed; with the return of Charles II, son of the beheaded king, the Stuart royal house and the Anglican establishment were restored in 1660. However, conflicts about religious freedom and royal power, going back to the Elizabethan settlement of the previous century, were not resolved but only intensified during the next three decades. Specifically, what were the legal status and consequent legal rights of Protestant and Roman Catholic dissenters to the Anglican establishment? One of Charles's first regal acts (the 1660 Declaration of Breda) was to grant a general pardon to all who claimed it within forty days - a pardon that covered all crimes including those “committed against us or our royal father.” In the same decree the King declared “a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of religion, which do not disturb the peace of the kingdom.” Nonetheless, the Corporation Act of 1661 required of all “mayors and other magistrates” an “oath of allegiance and supremacy” and denied all public offices to those who had not “taken the Lord's Supper, according to the rites of the Church of England.” In addition, two Conventicle Acts (in 1664 and 1670) forbade religious services in homes where five or more people sixteen years of age or over and not of the same family were present. Finally, the Test Act of 1673 (the Popish Recusants Act) added to the allegiance oaths and sacramental practice an explicit denial of transubstantiation. Catholics were thus barred from all public offices.

Constitutional Crisis and Resolution

The undercurrent in the seventeenth-century English debates about religious freedom and dynastic succession was a fear of royal return to Catholicism. Ever since the tragically short reign of Mary Tudor (1553-58), the Protestant majority in England feared another “popish” monarch. The fear was heightened by broader European anxieties about the threatened hegemony of Catholic France under Louis XIV. Even Catholic Spain allied itself with William of Orange, Europe's foremost Protestant champion, against the French. In England, Protestant dissenters and Catholics were marginalized from public life because their religion made their loyalty to the crown suspect. Oddly enough, the political fortunes of hyper-Protestant dissenters and their arch-foes were thus linked. This was illustrated clearly when, upon the death of Charles II in 1685, his Catholic brother, James II, assumed the English throne. In 1687 James proclaimed a Declaration of Indulgence that granted full religious liberty to all - protestants and Catholics alike. Still, Protestant and Parliamentarian nervousness grew as England feared that James was paving the way for a Catholic dynasty.

These concerns were not imaginary. Whether seventeenth-century Protestant fears about Catholics and liberty were warranted is not the issue here; our interest is only with the dynastic question. Only two days after James's daughter Mary wed William of Orange on November 4, 1677, James's second wife, Mary Beatrice, Duchess of York, gave birth to their first son. He died of smallpox only a month later, leaving Mary first in succession after her father. Upon succeeding to the throne, James disregarded the Test Act and appointed Catholics to public office and as military officers. In a second Declaration of Indulgence in 1688, James added the sinister line that he had dismissed from civil and military service all who refused to knuckle under his policy. He also insisted, to little effect, that the decree be read in all Protestant churches. Seven Anglican bishops who refused were thrown into the Tower on charges of sedition. In addition, as Louis XIV made public his intention to expand French sovereignty northward into Germany, James's “grand design” for restoring the Catholic faith and “destroying heresy everywhere” led him to pursue an alliance with France to attack Protestant Holland and effectively remove William and Mary from the line of succession. It is also worth recalling that the Edict of Nantes was revoked by Louis in 1685, unleashing a new orgy of Huguenot persecution in France. It was in this climate that England, on June 10, 1688, received word that James's Queen, Mary Beatrice, had given birth to another son, the new heir to the throne - or did she? The circumstances of the child's birth gave rise to many rumors that the baby was not James's and Mary's son but a changeling smuggled into the royal residence by Jesuits.

This, in brief, is the context within which seven leading Protestant nobles issued an invitation to William to come over and save England's state and church. The invitation was the culmination of protracted secret negotiations between English Protestant leaders and the Prince of Orange. The “invasion” was launched on November 14. With James offering little resistance, preferring flight to fight, William entered London on December 18, and within a month, peace and order were restored. Parliament was recalled, and, on February 6, 1689, it offered the crown to William and Mary jointly. Stuart royal absolutism had come to an end. For the first time Parliament had appointed the king and set as a condition the requirement that the king reign with Parliament. A Bill of Rights was drawn up, accepted by William and Mary and adopted by Parliament that same year.

The bill listed James's numerous violations of English law and judged that “the said late King James II having abdicated the government, and the throne thereby being vacant” it had been necessary to call together a new parliament with responsibility to act in such a way “that their religion, laws, and liberties might not again be in danger of being subverted.” The first task was to make a declaration “for the vindicating and asserting [of] ancient rights and liberties.” At the heart of the thirteen articles was the denial that royal authority could on its own make or dispense with laws, levy taxes, deny petitions, keep a standing army, abridge free speech, restrict election to Parliament, and limit Parliamentary assemblies, without the express assent of Parliament itself. Then, having been persuaded that William and Mary would fully abide by the terms of this Bill of Rights, Parliament resolved “that William and Mary, prince and princess of Orange, be, and be declared, King and Queen of England, France, and Ireland, and the dominions thereunto belonging.” William and Mary were crowned in Westminster Abbey on April 11, 1689. The revolution was complete.

Revolution in England and Abroad

Or was it really a revolution? Some historians have suggested that the entry of William and Mary on the scene was, in Edmund Burke's words, “a revolution not made, but prevented.” The course on which James II had so stubbornly set his face, the “grand design” to recapture not only England but all of Europe for the Catholic faith, and the steps he had already undertaken to fulfill this dream, represented a significant and clear abridgment of legal rights that had been won by Englishmen at hard cost, enshrined in royal charters, and enjoyed for a considerable time. Arguably, James himself was the revolutionary, and his actions created the conditions in which a civil war was likely. A good case can be made that the invitation to William and Mary, legitimate claimants to the throne, represented an upholding of constitutional law and not its revolutionary overthrow. Numerous conservative commentators, including Burke and Kuyper, have argued thus.

At the same time, we cannot overlook the “revolutionary” character of the events of 1688-89. From then on, Parliament was supreme, not the king. Though it did not use the language of “contract,” the Bill of Rights clearly established a social and legal compact between the monarchy and “the people.” Sovereignty was finally “to the people,” not as in the abstract democratic-anarchic and bloody ideology of the French Revolution but in constitutionally framed order. It must be noted here that the American colonies, now fully under British control, grew to maturity in the eighteenth century taking the Bill of Rights and its provisions for granted. The American Bill of Rights takes over much of the language of its English antecedent, and the roots of the American polity cannot be understood apart from 1688-89.

The American experiment in ordered liberty, however, moved well beyond the settlement of 1689. Nothing underscores this point as clearly as the Act of Toleration that accompanied the Bill of Rights and was passed by Parliament on May 24, 1689. This decree provided full religious freedom for Protestant dissenters and pardoned all who had been penalized by old restrictive laws. Conventicles and other assemblies for worship were permitted, provided the doors were not barred or locked, and provision was made for those reluctant to swear oaths of allegiance, provided they promised loyalty to the crown, professed belief in the Trinity, and acknowledged biblical inspiration. All of this was intended to provide “ease to scrupulous consciences in the exercise of religion” with the goal that such toleration “may be an effectual means to unite their majesties' Protestant subjects in interest and affection.” The same legal toleration, however, was not granted Catholics. (Historians have observed, however, that the Act of Toleration did nurture a climate of religious freedom that also benefited Catholics.) The 1689 settlement was a major step in the development of religious freedom, but we are still a long ways from the First Amendment in the American Bill of Rights. Dissent was not legally proscribed, but the Anglican church remained established by law. Still, thanks to 1688-89, the British crown never attempted to dictate the consciences of the American colonists, and one hundred years of religious freedom helped make the First Amendment possible, if not likely.

And what of “conservative revolutions”? The events of 1688-89 confirm the conservative bias against revolution. If drastic measures are called for in certain instances of constitutional crisis, it is imperative that such measures fully honor the legal framework and process. To preserve a constitutional order, it is necessary to honor the legal processes that the constitution itself calls for. Thus, the remedy against wicked and unjust rulers is impeachment and not assassination; a conservative does not participate in a coup d'etat. A conservative protest against civil authority should never include actions that could undermine it. Civil authority should be resisted only as Martin Luther King, Jr., did - in the name of law and with a willingness to honor the law by accepting its penalties for disobedience. That attitude is relevant for our day as well, as we face the increasing delegitimation of civil authority in America.